Omaha officers told: Don't interfere with citizens' right to record police activity -
Published Monday, May 13, 2013 at 1:00 am / Updated at 5:20 pm
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Omaha officers told: Don't interfere with citizens' right to record police activity

Omaha police officers are hitting the streets with a clear directive: Don't interfere with citizens' right to record police action.

The department has refined its policy on the public's use of cameras and video in the wake of a YouTube posting of an arrest that led to the firing of four officers, two of whom are charged with criminal wrongdoing. The March 21 incident highlighted the sometimes contentious terrain that officers and citizens navigate when cameras increasingly capture their interactions.

“Individuals have a First Amendment right to record police officers in the public discharge of their duties, plain and simple,” said Deputy Chief Greg Gonzalez.

The department has long recognized that right. But the revised policy, which cites federal case law, states that citizens cannot be arrested simply for recording police or being near a crime scene.

The only time police have a right to step in is to make an arrest or write a ticket if a citizen breaks a law while recording police activity, Gonzalez said.

If a citizen with a camera goes past crime scene tape, for example, or disobeys a lawful order from police, he or she can be arrested for those offenses. Someone taking video or photographs also can be arrested for trying to stop a witness from talking to police. These actions could be considered obstruction or interference, Gonzalez said.

“If an officer is at a crime scene, and you're recording and cooperating with police, you're well within your legal right,” Gonzalez said.

Starting Tuesday, the department's 105 police sergeants will receive training that includes an overview of the revised policy. In addition, all officers have been sent a “training bulletin” outlining the changes. Commanders have gone over the revisions during roll call, which occurs at the start of each officer's shift.

Omaha is not unique in having to clarify for officers the video rights of citizens. So many law enforcement agencies have struggled with the issue that the U.S. Department of Justice released guidelines last year to help shape local policies.

“Many officers say, 'If you're doing your job and being professional and conducting your job the way you should be, you have nothing to worry about,' ” said Lauri Stevens, a national social media strategist for law enforcement agencies. “Agencies all over the country are dealing with this.”

The Nebraska chapter of the American Civil Liberties Union sent a warning letter last year to law enforcement agencies across the state after hearing about violations of citizens' recording rights. One case involved a Blair woman arrested by Washington County deputies in January 2012.

“They said her refusal to stop recording was her crime,” said Amy Miller, legal director for ACLU Nebraska.

But Washington County Sheriff Mike Robinson said the woman was arrested because she refused to comply with a Breathalyzer test and threw her cellphone at a deputy, striking him in the chest.

“Citizens have the right to record, and (deputies) know that,” Robinson said. “We review this issue constantly.”

Miller said good video policies serve everyone's interest: Citizens' videos can hold police accountable when they overstep their bounds — or it can prove that officers acted appropriately.

In the controversial video of Omaha police arresting three brothers near 33rd and Seward Streets, viewers saw only part of what happened. But it was enough to prompt an investigation of possible excessive force and evidence tampering by officers.

Outside experts ultimately exonerated then-Officer Bradley Canterbury, who was seen in the video repeatedly punching suspect Octavious Johnson.

The experts said the video, shot by a neighbor, showed Johnson resisting arrest and Canterbury responding with reasonable force. Canterbury was among the four fired officers, but he has appealed his termination.

The criminal charges in the case grew out of a missing video taken inside the Johnson home. Prosecutors allege that Officer James Kinsella destroyed a memory card and that Sgt. Aaron Von Behren conspired to orchestrate officers' stories. Both were fired.

Kinsella is charged with felony evidence tampering and misdemeanor obstruction and theft. Von Behren faces two misdemeanors: obstruction and accessory to a felony.

The Seward Street incident was the impetus to revise the department's cellphone and camera policy. The old version fell under the department's public relations guidelines, Gonzalez said. The revised version stands as a separate policy, making it clear that it's not about good PR but rather about citizens' rights, he said.

Stevens, the social media specialist, said none of this is new to law enforcement.

“It's just that now, everybody's got a camera,” she said. “Folks have their phones in their hands all the time, and they're likely to push a button.”

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Contact the writer: Maggie O'Brien

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